Seyfarth Synopsis: The U.S. District Court for the Western District of Wisconsin recently cast doubt on employers’ ability to strike the class allegations in a complaint early in litigation. In Gilbert, et al. v. Lands’ End, Inc., No. 19-CV-1066, 2020 WL 1912003 (W.D. Wis. Apr. 20, 2020), the Court denied the defendant’s motion to strike the class allegations because the plaintiffs had not yet had the opportunity to develop the record in discovery. The decision is a good read for corporate counsel on the timing of defense motions attacking the viability of class claims.
In Gilbert, Plaintiffs asserted that their employer, Delta Airlines, launched a new line of uniforms in 2018, manufactured by Defendant Lands’ End, Inc. (“Lands’ End”), for flight attendants and gate and ramp agents. Id. at 2. Delta advertised the new uniforms as stretch, wrinkle, and stain resistant, waterproof, anti-static and deodorizing, features made possible by applying “[v]arious chemical additives and finishes.” Id. Plaintiffs alleged the uniforms caused a variety of adverse health effects, including “rashes, headaches, fatigue, breathing difficulties, hair loss, low white blood cell count, nausea, heart palpitations, body aches, sore throats, and scarring.” Plaintiffs also alleged the uniforms crocked, bled, and stained the wearers and their possessions purple.
On the basis of these allegations, Plaintiffs brought a proposed class action against Lands’ End asserting claims for negligence, design defect, manufacturing defect, failure to warn, breach of express and implied warranty, and violation of the Magnuson-Moss Warranty Act. Plaintiffs’ putative class consisted of “[a]ll flight attendants, gate agents and ramp agents employed by Delta in the United States who were required to wear Passport Plum and red-colored uniforms manufactured by Defendant.” Lands’ End, in turn, filed a motion to strike the class allegations, arguing the proposed class was impossible to certify under the class action requirements of Rule 23.
The Court’s Decision
In its motion, Lands’ End maintained that the putative class could not be certified because it included Delta employees who suffered no injury and did not have standing to bring claims. In support of its argument, Lands’ End pointed to numerous instances within the complaint where Plaintiffs pled that only a small sub-set of the proposed class members actually suffered the alleged harms. For example, none of the named Plaintiffs alleged that they experienced the uniforms crocking and bleeding. Further, Plaintiffs alleged that “some female flight attendants” reported illness; “hundreds of flight attendants” complained about illness on a private Facebook page with several thousand members; “some flight attendants” were told they could request disability job accommodation; and “1,900” employees complained to Delta about the uniforms. Id. at 3. Lands’ End argued these statements, in effect, constituted an admission that “the vast majority of the putative class is uninjured” and the class allegations should be stricken. Id.
The Court rejected Lands’ End’s argument for three reasons. First, the Court reasoned that Plaintiffs’ allegations would be further developed through discovery, so the Plaintiffs should be given time to conduct discovery to determine the actual number of injured Delta employees. Second, the Court held that Plaintiffs were not required to plead a proposed class definition in their complaint, so even if the definition provided was overbroad, a denial of class certification- or a striking of the class claims – at an early stage was unwarranted. Third, the Court held even if only a small sub-set of putative class members were harmed, class certification may still be possible. The Court determined that even if a class definition is overbroad, the issue may result in the Court granting class certification but later entering a judgment largely exonerating Lands’ End. Ultimately, because Plaintiffs’ class definition included individuals who could have been harmed by the uniforms, the Court held that the proposed class was not overbroad at this point in the litigation.
Lands’ End additionally argued that the class claims should be stricken because individual issues of fact and law predominated over common ones, making class treatment impossible. The company asserted that each clothing item had different “chemical treatments, fabrics, dye, style, skin contact, intended use, and more.” Id. at *4. Furthermore, employees would receive different uniforms depending on the employee’s job, work climate, gender, and personal selection. Lands’ End estimated it would have to review over 64,000 items of clothing to determine causation. The Court rejected this argument as premature and held that the issue was more appropriately addressed in discovery.
Lands’ End also argued that each employee wore the clothing in different ways and in different contexts, requiring individual assessments of each employee. In particular, Lands’ End pointed out one Plaintiff’s use of an undershirt. Id. The Court was skeptical that the alleged variations were relevant, ultimately holding that it was not going to strike the class allegations “because Lands’ End assumes that confounding behavioral and environmental variables will impossibly complicate the causation inquiry.” Id.
Finally, Lands’ End pointed out the variations in employees’ “alleged physical ailments, coupled with their inherently individualized treatment choices, medical histories, preexisting conditions, and potential alternative causes, preclude[d] class certification.” Id. at 5. The Court acknowledged that Plaintiffs “will likely face an uphill battle at class certification” due to these issues but declined to strike their class allegations before Plaintiffs had an opportunity to engage in discovery on these issues. As a result, the Court held that “this is not a case in which the pleadings make clear that the suit cannot satisfy Rule 23 such that striking the class allegations would be justified,” and denied Lands’ End’s motion. Id.
Implications for Employers
This case serves as a warning to employers to carefully assess the pros and cons of filing a motion to strike class allegations early in litigation. Though the Court in this case agreed that class certification could be an “uphill battle” for Plaintiffs, it still denied Defendant’s motion, thereby giving the Plaintiffs a chance to build a record in discovery. Before filing a motion to strike class allegations, employers should be cautious that even substantial deficiencies in class allegations may still survive the pleadings stage.